Monday, January 9, 2012

Does the South still practice vote denial and dilution based on issues of race and ethnicity? Part I: Race/Ethnicity and the redistricting dilemma

Posted by
Charles L Zelden

In my last blog, I ended by asking: does the South still
practiced vote denial and dilution based on issues of race and ethnicity? In other words, do the fact- and
historical-based justifications adopted by the Supreme Court in 1966 upholding
the Voting Rights Act of 1965 still apply today?

The short answer is yes.
Race and ethnicity still play major roles in who votes in America and in
shaping the impact of those votes. And we
do find some of the most extreme cases of this effect in those territories
covered by Section Five of the VRA. The
long answer that explains the short answer gets very complicated very quickly,
however.

In 1966, when the Supreme Court decided South Carolina v. Katzenbach, the problem at hand was race-based
vote denial. Poll taxes; unfairly administered constitutional
understanding, moral fitness, and literacy tests to register to vote; and
overtly complicated registration procedures all excluded large numbers of
minority voters from the polls. In the
decades that followed, negative court decisions, vehement executive orders, and
extensive congressional revisions of the law forced recalcitrant Southern
governments to open the polls to all eligible voters and to end their
obstruction of minority voting rights.
The resulting reconstruction of southern political power structures brought
on by minority voting was so profound that -- in the words of Sociologist Chandler Davidson and Political Scientist Bernard Grofman -- it constituted nothing
less a “quiet revolution in the South.”

Vote denial was only part of the picture, however. Just as prevalent, and in many ways more
effective in their exclusionary intent, were electoral rules and procedures
that diluted minority voting
patterns. The use of such vote-dilution
techniques as at-large elections, majority vote requirements, and the creation
of voting districts gerrymandered to submerge minority voters in a larger pool
of white voters, had the effect of denying minority voters a valid voice in the
electoral process. Yes, they could vote,
but so long as the majority population voted as a bloc and so long as
facially-neutral rules and procedures submerged minority voters in a majority
sea, those minority voters rarely saw their votes producing the results they
desired.

In 1969, the Supreme Court took up these matters in Allen v. State Board of Elections. The case’s core was a challenge to election
law “reforms” enacted by Virginia and Mississippi, following passage of the VRA
of 1965, which mandated the shift to at-large county elections. Writing for the Court, Chief Justice Earl
Warren held that Section 5 of the Voting Rights Act encompassed vote dilution
as well as vote denial discriminations.
Invoking the one person-one vote requirement of Reynolds v Sims, Warren concluded:

the
right to vote can be affected by a dilution of voting power as well as by an
absolute prohibition on casting a ballot. . . . Voters who are members of a
racial minority might well be in the majority in one district, but in a decided
minority in the county as was whole.
This type of change could therefore nullify their ability to elect the
candidate of their choice just as would prohibiting them from voting.

With this fact in mind, the Court rejected all efforts to
read Section 5 narrowly: “the Voting
Rights Act was aimed at the subtle, as well as . . . obvious, state regulations
which have the effect of denying citizens their right to vote because of their
race.”

By extending the coverage of the VRA to include vote
dilution, the Court radically extended the VRA’s reach. It also linked the issue of minority vote
dilution to laws and precedents that had not originally been enacted or decided
with race in mind. In particular, Chief
Justice Warren’s linking of the “one person, one vote” standard of the
reapportionment cases (Gray v. Sanders[1963], Wesberry v. Sanders[1964], and Reynolds v. Sims[1964]) to the VRA’s prohibition of minority vote
dilution significantly complicated the reapportionment process.

As originally declared, the “one person, one vote” standard dealt
only with protecting the value of an individual’s
vote. Vote dilution, however, involved
the collective impact of election
procedures on a racial group’s vote. In
fact, the most common form of race-based vote dilution, at-large elections, did
not conflict on its face with the one person-one vote requirement. As structured, at-large voting actually came
very close to the abstract ideal behind one person-one vote -- every voter in a
particular jurisdiction voted for or against every candidate running. Under such regimes, considered one-on-one, a black
voter had an equal chance to influence the election’s outcome as compared to a white
voter under such regimes. Even
race-conscious gerrymandering specifically designed to submerge concentrated
black communities into white majorities did not explicitly conflict with “one
person, one vote” standard if the districts so created were of equal size.

Yet, because the Justices went beneath the surface of
voter-dilution mechanisms, their ruling in Allen
transformed the reapportionment process.
Suddenly reapportionment was not just about creating equal sized
districts. Now those drawing new
legislative maps also would have to consider the impact that these new
legislative districts would have on minority voting strength. This new requirement placed the states in the
difficult position of proving a negative: that their newly-drawn districts
would not dilute the electoral ‘voice’ of minority voters. By the end of the 1970s, the answer to this
dilemma was found in the intentional creation of legislative districts in which
the voters were primarily members of a minority group – the so-called “minority-majority”districts.

Minority-majority districts raised two further problems,
however. The first was the convolutions that
legislators had to adopt in drawing their legislative maps to pull together
enough minority voters from physically-distant communities to create a
minority-majority distinct. The second was
determining the number of majority-minority districts necessary to assure that
the minority vote was not diluted. A
collateral problem, interacting with the first and second problems, was the
pressure that partisan political considerations put on the redistricting
process (that is, the tendency of the majority party in power to adopt
political gerrymanders either to strengthen their own electoral prospects or to
weaken those of their opponents); although this problem was separate from those
caused by the effort to create minority-majority districts, it nonetheless
affected that process of district creation .

All these issues are present in the consolidated Texasredistricting cases being argued before the Supreme Court today. Over the last decade, Texas’s population has increased
by more than 20 percent, or about 4.2 million
people. Hispanics account for 2.8
million, or 86 percent, of this increase.
As a result of this growth, Texas was assigned four new congressional
seats, giving it a total of 36. The
Texas Legislature’s proposed redistricting maps created only one new heavily
Hispanic district out of the four, however.
Their reasons are largely political.
The Texas Legislature is controlled by Republicans; Texas Hispanics tend
to vote Democratic. On seeing the
redistricting maps, Texas Latinos cried foul.
They argued that the proposed districts diluted Hispanic voting strength
in violation of the VRA. Texas, fearing
that its maps would not be pre-cleared by the Justice Department, chose the
statutory alternative of seeking pre-clearance from a three-judge court of the U.S.
District Court for the District of Columbia.
Such court proceedings, however, tend to take more time than
pre-clearance by the Justice Department.
With the 2012 election just around the corner, at the suggestion of the
D. C. Court, a three-judge panel from the Western District of Texas was given the
task of drawing ‘interim’ legislative maps for use in 2012. These maps, in turn, took into account the
rapid growth in Texas’s Hispanic population and created three of the four new
districts with Hispanic majorities.
Texas then cried foul, arguing that the ‘interim’ maps should show more
deference to the choices made by the state legislature. In December 2011, the U.S. Supreme Court
placed a stay on the ‘interim’ maps and held the whole matter over for today’s
argument – after which, presumably, the Court will decide which map drawing
approach is appropriate.

As the Texas redistrict example makes clear, questions of
intent and even of effect in minority vote dilution become quite complicated when
the issue of vote dilution must interact with the tensions already existing
among the individualistic “one person, one vote” requirement of the
redistricting cases, the collective imperatives behind the VRA’s prohibition of
minority vote dilution, and the dictates of partisan politics. Were Texas Republicans’ actions aimed at
Hispanics as minority voters or as Democrats?
If the former, then the Texas Legislature’s actions clearly were a case
of minority vote dilution forbidden by the VRA.
If the latter, then one can make the case that this is nothing more than
a partisan political gerrymander – something that the Supreme Court has never
declared unconstitutional. Then there is the question of whether intent matters at all when it comes to minority vote dilution. How the
Justices answer these questions will largely determine how they rule in the Texas
redistricting case – and incidentally, shape similar battles in states across
the Union (if not in this year, then in ten years).